By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Yesterday, the first day of the October 2017 term, the justices heard oral argument in Sessions v. Dimaya, a void-for-vagueness challenge to a criminal-removal provision of the U.S. immigration laws. As I explained in my preview of the case, the U.S. Court of Appeals for the 9th Circuit had relied on the Supreme Court's opinion in Johnson v. United States to find unconstitutionally vague a provision making a "crime of violence," as defined in the immigration statute's "residual clause," 18 U.S.C. § 16(b), an "aggravated felony" subjecting an immigrant to mandatory removal. In so doing, the court of appeals rejected an immigration court's conclusion that James Garcia Dimaya, neither of whose two burglary convictions involved violence, had been convicted of a "crime of violence" and had to be removed from the United States.

The case was first considered last term, when the court was short-handed following the death of Justice Antonin Scalia. At oral argument last January, the justices seemed willing to test a provision of the immigration statute, a civil statute, even though vagueness challenges have more often been successful with respect to criminal laws. However, they appeared divided as to whether this case is distinguishable from Johnson and whether Section 16(b) is void for vagueness, and they restored the case to their calendar for reargument this fall. Consequently, all eyes were on Scalia's replacement, Justice Neil Gorsuch, yesterday.

This oral argument seemed to have a more definitive direction than the first one. And the tide seemed to favor Dimaya.

Arguing for the United States, Deputy Solicitor General Edwin Kneedler again defended the constitutionality of Section 16(b), as he had in January. He first contended that the vagueness test as applied to an immigration law is not as rigorous as for criminal laws, a contention that Justice Ruth Bader Ginsburg quickly questioned. Justice Sonia Sotomayor asked whether a vague statute might result in arbitrary enforcement, and noted that less than 10 percent of burglaries involve an occupied home, which might be expected to increase the potential for violence. Justice Elena Kagan expressed similar concerns.

Not long into the argument, Gorsuch began active questioning and seemed ready and willing to apply Scalia's opinion in Johnson to this case. In language that Scalia would have loved, Gorsuch noted that the due process clause does not include the criminal/civil distinction embraced by the government: "I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property. It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right of self-incrimination, for example."

On the defensive throughout, Kneedler emphasized that the federal government traditionally has enjoyed broad discretion in the enforcement of the immigration laws.

Ginsburg noted that the government could have sought to remove Dimaya under another provision of the statute, which allows for removal for a conviction of a "crime of moral turpitude." Justice Samuel Alito then questioned whether "crime of moral turpitude" was any less vague than "crime of violence."

Gorsuch asked how far judges should be allowed to go in defining the "ordinary case" under a criminal statute to determine whether it is a "crime of violence" for purposes of Section 16(b). He quipped: "How am I supposed to determine what the ordinary case is? Should I bring in some experts and have an evidentiary hearing?"

Later in the argument, Gorsuch threw Kneedler what might have appeared to be a life preserver, asking whether vagueness doctrine might be "a subspecies of substantive due process." Kneedler said that that indeed was the case. Gorsuch then pounced, saying that the doctrine was more procedural than substantive, because Congress could avoid a vagueness challenge by passing a more specific statute.

Representing Dimaya, E. Joshua Rosenkranz, who also had argued the case last term, defended the 9th Circuit's conclusion that Section 16(b) was unconstitutionally vague. Seeing an ally in Gorsuch, Rosenkranz began as follows: "Justice Gorsuch is right. [Determining a crime of violence] is not a job that Congress can appropriately delegate to the courts and to enforcement officials on the ground."

Rosenkranz argued primarily that the residual clause was unconstitutionally vague under Johnson. When questioned by Alito about how to determine when a civil statute is unconstitutionally vague, Rosenkranz emphasized that the statute at issue is not just any civil statute, but a removal statute. And, he maintained, the Supreme Court said in Jordan v. DeGeorge that vagueness standards apply to deportation statutes.

Rosenkranz discussed the standard for vagueness in civil statutes set forth in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., which dealt with a business licensing ordinance regulating the sale of products that might be used for illicit drugs, and which made it clear that a civil statute with "severe consequences" could be challenged for vagueness. Both Gorsuch and Sotomayor wondered aloud how a court would go about defining "severe consequences." Rosenkranz emphasized that the consequences of removal are unquestionably severe - "banishment" and "exile" - and "on par with a criminal punishment." Alito worried about how to draw the line between "severe" and lesser consequences. Ever the textualist, Gorsuch quickly responded and suggested that the line should be "life, liberty, or property," language found in the due process clause.

Justice Anthony Kennedy asked whether Congress could pass a law allowing an immigrant convicted of a crime to be deported in the discretion of the U.S. attorney general, if he or she determines that the presence of the alien is inconsistent with the best interests of the United States. Rosenkranz said such a statute would be unconstitutionally vague.

In response to a question from Gorsuch, Rosenkranz replied that vagueness analysis involves procedural, not substantive, due process, a proposition with which Alito disagreed.

Ginsburg asked why if, as the Supreme Court has held, "crime of moral turpitude" is not unconstitutionally vague, "crime of violence" would be. After Rosenkranz responded that "moral turpitude" has been delineated over "two centuries' worth of law," Kagan added that "in a crime of moral turpitude, we don't have to consider what the ordinary case is, do we?"

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court. Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia's opinion in Johnson to Dimaya's case - maybe even more faithfully than Scalia himself would have done. And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute's residual clause.

By Raquel Aldana, Associate Vice Chancellor for Academic Diversity and Professor of Law, UC Davis

[Cross-posted from UC Davis Equity and Inclusion Blog]

On Sunday September 24, 2017, while President Trump artfully distracted the nation by feuding with NFL football players over their First Amendment right to protest racial injustice in the United States, the White House released a Presidential Proclamation Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorist or Other Public-Safety Threats. This new travel ban ("travel ban 3.0") replaces the previously revised travel ban issued March 6 (Executive Order 1380; Protecting the Nation from Foreign Terrorist Entry into the United States), which was due to expire that same night. Travel ban 3.0 has not received as much media attention or public consternation as the original travel ban. However, its harms, which are now indefinite, remain largely unchanged for five of the six predominantly Muslim nations included in the original travel ban (Iran, Libya, Syria, Somalia, and Yemen) while three new nations (Chad, North Korea, and Venezuela) are added to the list.

On its surface, travel ban 3.0 appears to draw careful distinctions in the degrees of travel restrictions imposed on each of the eight nations based on alleged differences in the security risks presented by each. However, with the exception of Venezuela, the most important fact is that travel ban 3.0 indefinitely bars nationals from all of the seven remaining nations from permanent immigration into the United States. No careful "tailoring" as the government claims, can hide this harsh reality. Moreover, six of the targeted nations (Iran, Chad, Libya, Syria, Somalia, and Yemen) are predominantly Muslim. Not unlike the previous two travel bans, travel ban 3.0 hurts predominantly Muslim U.S. families, Muslim refugees, and the entire U.S. economy with highly questionable national security gains.

Permanent immigration into the United States occurs largely for three primary reasons: to promote family unification between foreigners and U.S. citizens or lawful permanent residents, to recruit workers that Congress deems contribute to the U.S. economy, and to provide protection from persecution to refugees and asylum seekers. In 2015, the last year for which the government has provided official data on permanent immigration into the United States, over 20,000 permanent immigrants from these seven nations (the largest numbers from Iran, Syria, and Yemen) arrived in the United States to unify with spouses, children, parents or siblings, to begin gainful employment, often after completing programs of study in the United States, or to escape horrific repression.[1] Moreover, as of 2012, nearly 800,000 persons living in the United States come from countries affected by the ban, representing 2% of all foreign-born immigrants in the country.[2] With travel ban 3.0, potentially hundreds of thousands of U.S. families, some who have waited in backlogged immigration lines for years, confront the possibility of an indefinite separation from their loved ones. Moreover, in violation of our moral obligation and international and domestic legal commitments, under travel ban 3.0, the United States turns its back indefinitely on tens of thousands more refugees.

Travel ban 3.0 did ease some of the previously imposed travel bans in puzzling ways. Only two of the eight nations, North Korea and Syria, face an indefinite bar for both permanent and temporary immigration to the United States. Venezuela is a unique case because the ban on travel applies only to certain government officials. Somalia is also a unique case because temporary immigration is not suspended but rather subjected to additional scrutiny. For the remaining nations, the odd tailoring of restrictions or exceptions to the restrictions will largely mean that some temporary migration will be allowed to come in from each of these countries except for temporary visitors on business or as tourists. For Iran, the ban on temporary migration is even broader exempting only student categories. This begs the obvious question as to why the Trump administration considers it possible to contain the purported national security risks of travel for temporary migrants, who usually come to the United States in much greater numbers than permanent immigrants, while imposing more extreme measures to permanent immigration.

Universities across the country may view as positive that travel ban 3.0 lifts the student visa restrictions on most of the countries affected in the prior travel ban, including Iran. Students from North Korea and Syria, however, are indefinitely banned as students, while Somali students could still face undue restrictions. More importantly, however, travel ban 3.0 leaves intact the barriers that would significantly deter many foreign students, not only those who come from the nations directly affected, from choosing to study in the United States. Already, students from Chad, Libya, and Yemen are indefinitely banned from seeking permanent legal employment in the United States once they finish their studies while students from Iran are indefinitely banned from both temporary and permanent lawful employment in the United States. This significantly reduces the economic incentives for these students to choose their studies in the United States and it robs us of the opportunity to reap the benefits of a U.S. educated workforce. More importantly, the ban signals to these foreign students that they are considered security risks to our nation and are not wanted. Why should foreign students spend tens of thousands of dollars to study in a nation hostile to them and their contributions? Who among them is going to be targeted next?

More than a million international students currently study on U.S. college campuses, contributing nearly $36 billion to the U.S. economy.[3] From the targeted countries, Iran and Venezuela feature among the top 25 sending nations, and together comprise more than 20,000 students nationwide.[4] At UC Davis, our student population from the affected nations is fewer than 100, with the largest share comprised of students from Iran. These students are feeling targeted, isolated, and scapegoated. Each one of them, however, is a valuable member of our community. Their presence on this campus makes us a better university and enhances our understanding of shared or even different values, culture, religion, and ideas. Our shared spaces allow us to grow in respect for one another. U.C. Davis students and scholars affected by travel ban 3.0 can find support at UC Davis Services for International Students and Scholars. UC Davis remains committed to supporting and welcoming students and scholars regardless of citizenship or place of birth.

Travel ban 3.0 may have both delayed and muddled the legal challenges to the prior travel bans but it should not alter our moral indignation against the policies. The legal challenges to the prior travel bans relied on President Trump's virulent anti-Muslim rhetoric to make a compelling case of the religious animus motivating the ban. The inclusion of Venezuela and North Korea in travel ban 3.0 could make this claim harder, particularly when immigration law's exceptionalism already grants the President wide discretion to violate fundamental rights even of U.S. citizens directly affected by the ban (e.g., those who can assert a "bona fide" relationship to nationals from the banned countries). Law, however, cannot always provide the right answers. We must also be guided by our values, our humanity, and our common sense. Travel ban 3.0 remains essentially an anti-Muslim prohibition. It must also be understood in the context of a broader anti-immigrant agenda, which also targets other communities of color. This includes the recent immigration raids, DACA's rescission, cuts in refugee admissions, and legislative proposals like the RAISE ACT which proposes major cuts to family immigration, which predominantly originates from Mexico, China, India and the Philippines. The national security justification for the ban has great appeal, but it is misguided. Since September 11, 2001, a vast majority of the perpetrators of terrorist attacks came from countries not listed in the ban, and many were born in the United States.[5] Security experts particularly puzzle over Chad's inclusion since Chad has been an ally in the fight against terrorism.[6] Careful consideration must be given to how and whether immigration controls are necessary to improve U.S. security. However, indiscriminate immigration bans against entire nations are unlikely to make our nation safer. They will certainly, however, make us a less diverse and inclusive nation.

[1] Department of Homeland Security, 2015 Yearbook of Immigration Statistics, Table 10: Persons Obtaining Lawful Permanent Resident Status By Broad Class of Admission and Region and Country of Birth.

[2] Mona Chalabi, "How many US immigrants come from Trump's seven banned countries?" The Guardian (28 January 2017); Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants from Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[3] Karin Fischer, "International Students Dodge Trump's Partly Reinstated Travel Ban, but Concerns Persist," Chronicle of Higher Education (26 June 2017).

[4] Id.

[5] Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants From Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[6] Helene Cooper, Michael D. Shear and Dionne Searcey, "Chad's Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say," New York Times (26 September 2017).

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Recent years have seen the Supreme Court regularly review criminal immigration cases. That should be no surprise in light of the fact the immigration courts have relied on criminal-removal grounds to remove hundreds of thousands of noncitizens annually from the United States. Sessions v. Dimaya, which will be reargued next week, is another criminal-removal case. However, it is not just any criminal-removal case.

Unlike other recent removal cases decided by the court revolving around the interpretation of the immigration laws - for example, 2017's Esquivel-Quintana v. Sessions, in which the Supreme Court interpreted the statutory phrase "sexual abuse of a minor" for removal purposes - Sessions v. Dimaya involves a constitutional challenge to a provision of the immigration laws allowing for removal of an immigrant convicted of a crime. Those laws historically have been largely immune from judicial review under what is known as the "plenary power" doctrine, originally announced in 1889, in The Chinese Exclusion Case. Although not yet overruling the doctrine, the court has slowly moved away from a hands-off approach to the judicial review of the immigration laws; just last term, in Sessions v. Morales-Santana, it rejected gender distinctions favoring mothers over fathers in the award of derivative citizenship.

The issue in Dimaya is whether, and if so how, the Constitution applies to judicial review of the immigration laws. The court's approach to the question could mean big things for a body of law chock full of nationality, gender and class classifications, many which would be constitutionally suspect if the rights of U.S. citizens were involved.

A noncitizen, including a lawful permanent resident, who is convicted of an "aggravated felony" is subject to mandatory removal. The Immigration and Nationality Act defines "aggravated felonies" expansively, including some misdemeanor as well as felony convictions. Part of that definition includes a "residual clause," 18 U.S.C. §16(b), which defines a "crime of violence" to encompass "any ... offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in course of committing the offense."

A lawful permanent resident, James Garcia Dimaya lawfully immigrated to the United States from the Philippines in 1992. His two burglary convictions did not involve violence. Nonetheless, concluding that the convictions were for "crime[s] of violence," the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. Dimaya appealed the BIA's order to the U.S. Court of Appeals for the 9th Circuit.

Vagueness challenges tend to be limited to criminal laws. However, in 1951, the Supreme Court in Jordan v. DeGeorge found that, because of "the grave nature of deportation," due process requires fair notice of which criminal convictions will result in possible removal. The court went on in Jordan to reject a vagueness challenge to a provision of the immigration laws that authorized removal of an immigrant for "any crime of moral turpitude."

In 2015, while Dimaya's appeal was pending, the court held in Johnson v. United States that the Armed Career Criminal Act's definition of "violent felony" was so vague as to violate due process. Relying on Johnson, the 9th Circuit found that Section 16(b) was unconstitutionally vague and vacated Dimaya's removal order.

Defending the constitutionality of Section 16(b), the U.S. solicitor general contends that the court of appeals erred in applying the due process clause's prohibition of vagueness in criminal statutes to a civil immigration law. The government relies on Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., in which the court stated that it has shown "greater tolerance of enactments with civil rather than criminal penalties." The solicitor general bolsters that argument by claiming, in language echoing the court's plenary-power decisions, that vagueness challenges to the immigration laws are especially inappropriate: "[T]he Executive Branch possesses broad authority in the administration of the immigration laws because of their foreign relations and national security implications." He further argues that, even if subject to a vagueness challenge, Section 16(b) satisfies due process.

Dimaya counters by accusing the federal government of seeking to overrule Jordan "sub silentio" and to fully immunize the immigration removal provisions from vagueness challenges. He further contends that "Jordan is ... consistent with this Court's cases demonstrating that contemporary vagueness standards in criminal cases apply to civil statutes that impose similarly severe consequences." Recent decisions such as Padilla v. Kentucky, in 2009, which expanded the scope of immigrants' Sixth Amendment right to effective assistance of counsel in criminal cases, have acknowledged that removal is a critical part of punishments for immigrants convicted of crimes. Given that background, Dimaya argues that Johnson compels a finding that Section 16(b) is unconstitutionally vague.

Divisions among the justices emerged in the initial argument of the case. However, no justice seemed interested in overruling Jordan's holding that removal provisions are subject to review under due process vagueness standards. Even if the justices were willing to review the constitutionality of Section 16(b), they appeared divided on whether this case is distinguishable from Johnson v. United States and thus whether the statute is void for vagueness. Short-handed after Justice Antonin Scalia's death, the court ordered reargument.

Over more than two centuries, the Supreme Court has not yet firmly established that the Constitution applies (much less how it applies) to the immigration laws. Sessions v. Dimaya, along with Jennings v. Rodriguez, a challenge to the constitutionality of immigrant-detention provisions in the immigration statute that will be reargued the day after Dimaya, offers an opportunity for the court to begin to provide a full answer to this fundamental question.

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Detention as a tool of immigration enforcement has increased dramatically following immigration reforms enacted in 1996. Two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because "to permit[] indefinite detention of an alien would cause a serious constitutional problem." Just two years later, the court in Demore v. Kim invoked the "plenary power" doctrine - something exceptional to immigration law and inconsistent with modern constitutional law - to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

How the Supreme Court reconciles these dueling decisions will no doubt determine the outcome in Jennings v. Rodriguez. This case involves the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that avoided "a serious constitutional problem" by requiring bond hearings every six months for immigrant detainees. The court of appeals further mandated that, in order to continue to detain an immigrant, the government must prove that the noncitizen poses a flight risk or a danger to public safety.

Defending mandatory immigration detention without bond hearings, the U.S. solicitor general challenges the lower court ruling:

Some may believe that the Ninth Circuit's vision of immigration detention is wiser or more humane, while others would disagree. But Congress weighed the interests in controlling the border, protecting the public from criminal aliens, affording individual aliens adequate protections and opportunities for relief and review, and minimizing the adverse foreign-relations impact of U.S. immigration law. The canon of constitutional avoidance is not a tool for courts to comprehensively rewrite those laws and strike a different balance.

The government further contends that judicial review through the filing of writs of habeas corpus by individual noncitizens satisfies any constitutional concerns raised by detention.

In arguing for reversal, the United States relies on Demore v. Kim and enthusiastically invokes the plenary-power doctrine, claiming that the 9th Circuit's ruling "conflicts with this Court's longstanding rule that the political Branches have plenary control over which aliens may physically enter the United States and under what circumstances." The government also cites Shaughnessy v.United States ex rel. Mezei, a Cold War relic from 1953 that law professors love to hate but that nonetheless remains good law. In an outcome difficult to square with modern constitutional law, the court in Mezei denied judicial review of a decision to detain an immigrant indefinitely based on secret evidence.

Defending the injunction entered by the lower court, the class of immigrant detainees contends that due process requires a bond hearing to determine whether the noncitizen is a danger to the public or a flight risk. Focusing on Zadvydas v. Davis, they claim that the Constitution requires a hearing but not a right to release. The class cites a litany of decisions in support of this position, including United States v. Salerno, from 1987 (upholding pretrial detention of criminal defendants only after individualized findings of dangerousness or flight risk at bond hearings); Foucha v. Louisiana, from 1992 (requiring individualized findings of mental illness and dangerousness before civil commitment); and Kansas v. Hendricks, from 1997 (allowing civil commitment of sex offenders after a jury trial). The only distinction between those cases and Jennings, the detainees argue, is that U.S. citizens, not immigrants, were being detained. The class further contends that habeas-corpus review fails to satisfy the due-process concerns implicated by prolonged mandatory detention.

Respondents do not confront the plenary-power doctrine head on; however, the amicus brief of Asian Americans Advancing Justice calls for the overruling of the doctrine, which "belongs in the ash heap of history along other racist doctrines," a reference to the fact that its origins can be traced to 19th-century decisions, such as 1889's Chinese Exclusion Case, in which the Supreme Court upheld laws excluding noncitizens from China.

During oral argument last term, some justices expressed concern that the 9th Circuit had behaved more like a legislature than a court in mandating a bond hearing every six months. Along those lines, Chief Justice John Roberts and others suggested that the case might need to be decided on constitutional grounds.

The court subsequently issued an order requesting supplemental briefing on the constitutionality of provisions of the immigration laws that allow for detention of noncitizens without bond hearings. For the most part, those briefs reinforced the parties' views on the merits. Even after the supplemental briefing, the court apparently needed an additional vote to decide the case. After Justice Neil Gorsuch replaced the late Justice Antonin Scalia, the court ordered reargument.

By holding that the immigration statute permitted a bond hearing at reasonable intervals and possible release from custody, the 9th Circuit sidestepped the serious constitutional concerns presented by the statute. The Supreme Court now must decide whether the court of appeals reasonably construed the statute to avoid the constitutional issues by requiring a periodic hearing and, if not, whether ordinary constitutional rules apply to immigrants in detention.

At oral argument, the justices no doubt will again grapple with the Supreme Court's two warring immigrant-detention decisions, Zadvydas v. Davis and Demore v. Kim. With briefing on the constitutionality of the detention scheme complete, the court is primed to reaffirm the plenary-power doctrine, or modify it to review the constitutionality of the immigrant-detention provisions of the immigration statute.

Whatever the outcome, a decision in the case will have an immediate and significant impact. In a January 2017 executive order, which included numerous immigration-enforcement initiatives, President Donald Trump announced an end to the "catch and release" of immigrants facing removal from the United States. Detention without bond became official immigration-enforcement policy. The court's decision in Jennings v. Rodriguez is therefore likely to bear on the administration's ability to implement its immigrant-detention program.

[Cross-posted from Latinx Talk]

By Kevin Johnson

In August 2017, President Trump pardoned former Maricopa County (Arizona) Sheriff Joe Arpaio, who a federal court found guilty of criminal contempt for intentionally violating numerous court orders in a civil rights lawsuit. In so doing, President Trump pardoned a flagrant and repeated violator of Latina/o civil rights and sent a deeply troubling message to the entire nation.

For decades, the controversial sheriff’s law enforcement methods had struck justifiable fear into the hearts of immigrants and U.S. citizens of Mexican ancestry. Years ago, the Department of Justice concluded “that discrimination against Latino persons exists in a wide range of [Maricopa County Sheriff Office (MCSO)] practices.  [It] obtained compelling evidence showing that MCSO deputies routinely stop Latinos at much higher rates than similarly-situated non-Latinos...” Letter from Thomas E. Perez, Assistant Attorney General, to Bill Montgomery, County Attorney, Maricopa County, Dec. 15, 2011.

The conduct of former Sheriff Arpaio is part of a long, if not illustrious, history of discrimination in Arizona. The “Bisbee Deportation” of Mexican workers from the state in 1917 is an infamous civil rights milestone. Unfortunately, discrimination against Latina/os in Arizona remains to this day. The Tucson public schools continue to operate under a consent decree entered in a school desegregation case. A federal court this year found that the state acted with a discriminatory intent in eliminating Mexican American Studies from the public schools and thus violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. A series of immigration enforcement, English only, and other laws — some of them vetoed by the governor, others struck down by courts — targeted Latina/os in the state.

Defeated for re-election in 2016, Sheriff Arpaio had made a name for himself in unabashedly focusing on Latina/os in ostensibly enforcing the U.S. immigration laws. Time and again, he stated unequivocally that he would continue to do just that – despite being ordered by the courts to end the discrimination. Arpaio consistently showed cruelty and insensitivity toward inmates under his legal protection. He, for example, made detainees wear pink underwear and suffer the outdoors in scorching Arizona summer heat. Arpaio forced undocumented immigrants in custody to live in a segregated “tent city” that Arpaio himself bragged was a “concentration camp.”

In 2010, the Arizona legislature passed S.B. 1070, a law that Arpaio championed. Section 2(B) of the law, the “Show Your Papers” provision, generated great fear in the Latina/o community; it gave state and local law enforcement officers carte blanche to question people about their immigration status and to expand the already rampant racial profiling of Latina/os. With anti-Latino sentiment lurking in the background, the Arizona legislature passed S.B. 1070 with little, if any, concern for the civil rights of Latina/os. The U.S. Supreme Court in Arizona v. United States (2012) in large part struck down S.B. 1070 as unconstitutional.

After a trial in 2013 that saw overwhelming evidence of racial discrimination, a federal court in Melendres v. Arpaio found that the Maricopa County Sheriff’s Office led by Arpaio engaged in a pattern and practice of racial profiling of Latinos in criminal and immigration enforcement. However, that was not the basis for Arpaio’s criminal conviction. The contempt charge instead resulted from the court’s finding that Arpaio for years had intentionally violated numerous court orders designed to end the discriminatory practices of the Sheriff’s Office. The court held a trial in 2017 affording Arpaio a chance to rebut the charges that he had failed to end the discrimination and was not in contempt of court orders. He failed and the federal judge found that Arpaio simply refused to comply with the court orders and his sheriffs continued to discriminate.

In some ways, Joe Arpaio is the modern incarnation of Birmingham, Alabama’s infamous police chief Bull Connor, an ardent opponent of integration in the 1950s and 1960s who directed fire hoses and violence at civil rights marchers.  Boldly defying the civil rights laws, segregationists in the Jim Crow era, like Arpaio today, had to be schooled on the rule of law. In one famous example, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court’s decision outlawing segregated schools in Brown v. Board of Education (1954). Only then could African American students attend Little Rock Central High School in Arkansas.

Ironically enough, in advocating aggressive enforcement of the U.S. immigration laws, Trump repeatedly emphasized the need to follow the rule of law. But President Trump’s pardon of Arpaio for flagrant violations of the civil rights laws is wholly inconsistent with any conception of the rule of law.

Presidential pardons by their nature are controversial, with President Ford’s pardon of President Nixon for his role in the Watergate cover-up a famous example. Still, in light of Arpaio’s controversial record, the fact that his pardon for a criminal contempt conviction provoked a firestorm of controversy should not be surprising. Still, an American President never has pardoned a person who repeatedly, willfully, and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.

Arpaio in effect took the view that the rule of law did not apply in Maricopa County, Arizona. This explains why Attorney General Jeff Sessions reportedly told President Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike have condemned the Arpaio pardon.

President Trump justified the pardon by saying that the sheriff “was just doing his job.” However, Arpaio’s “job” as a law enforcement officer does not include breaking the law or engaging in a pattern and practice of racial discrimination against Latinos.  Nor does Arpaio’s job as sheriff include intentionally violating court orders. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of unlawful actions of the Southern segregationists of yesterday. In important respects, the Arpaio pardon is akin to jury nullification popular in the days of Jim Crow when juries, whatever the evidence, simply would not convict whites – including police — of killing African Americans.

We live in a time of deep political division. The nation has seen civil unrest unfold as violent clashes take place between white supremacists and counter-protesters. President Trump and his followers have inflamed passion by claiming that immigration laws must be enforced with impunity, whatever the civil rights consequences. The pardoning of Joe Arpaio is entirely consistent with the enforcement-at-all-costs mentality and the sacrificing of Latina/o civil rights for immigration enforcement.

In pardoning Arpaio, the president demonstrates that, despite his stated commitment to enforce the immigration laws at all costs, he is not equally committed to enforcement of civil rights laws. That lack of commitment also can be seen in his response to the troubling recent clashes in Charlottesville. President Trump has made the political decision, consistent with the one to dismantle the Deferred Action for Childhood Arrivals program, to side with those opposed to federal civil rights law — and against the rule of law. That is not the message that the nation needs at this time.

By Kevin R. Johnson

[Cross-posted from the Daily Journal]

After months of speculation and rumor that has frightened immigrant communities across the United States, President Donald Trump has announced the end of the Deferred Action for Childhood Arrivals program. President Barack Obama created the program known as DACA to help protect undocumented immigrants brought to the United States as children from deportation. Since 2012 DACA has provided relief, and work authorization, to nearly 800,000 undocumented minors.

I laud the Obama administration for the courage and ingenuity to create DACA. Trump should not have ended the program that has benefited so many immigrants. But, there may be a silver lining in Trump's dismantling of DACA: He is delaying the end of the program for six months. This gives Congress time to pass a law that would provide enduring protections for the DREAMers, the term used to refer to undocumented college students who have become a potent political force. And it even could spur more far-reaching immigration reform.

The end of DACA has been met with expressions of nothing less than grief and a firestorm of bipartisan criticism. House Speaker Paul Ryan and Republican Sen. Orrin Hatch of Utah, for example, lobbied the president not to end the program. DACA seemed to have more supporters than ever. In the coming weeks, the nation is likely to see a great many protests and calls for political action.

It is worth remembering that Obama created DACA after Congress failed for years to enact comprehensive immigration reform. As he emphasized at the time, the deferred action program was a limited, and temporary, response to congressional gridlock on immigration. In my estimation, the creation of DACA was a constitutional and eminently sensible approach to a most sympathetic cohort of immigrants.

California has more DACA recipients than any other state - thousands of college students use the program that allows them to obtain authorization to work their way through school. In short, DACA students are seeking a better life than their parents.

In light of the fact that virtually all agree that the current immigration system is broken, Democratic and Republican political leaders should welcome the opportunity to reconsider immigration reform. Critics of DACA say it was flawed from the beginning because Obama created it through executive order. They instead argue that Congress is the appropriate branch of government to provide relief to undocumented immigrants. Whether one buys that argument or not, Congress now must act to protect DACA recipients and, in so doing, can once again tackle immigration reform.

In the end, DACA is just one piece of the larger immigration debate. The reform of our immigration laws is, needless to say, a complex problem. In 2013 a bipartisan group of senators passed carefully-crafted legislation aimed at reforming the legal immigration system, bolstering enforcement, and providing legal status to the 11 million undocumented immigrants in the United States. But the Republican-controlled House of Representatives never put the legislation to a vote.

The immigration reform proposal on the table today unfortunately would not solve any of these problems, but rather make them worse.  During the summer, Trump expressed support for a proposal called the Reforming American Immigration for Strong Employment (RAISE) Act, co-sponsored by Republican Senators Tom Cotton of Arkansas and David Purdue of Georgia. The Act would drastically reshape American immigration and likely increase pressures on undocumented immigration.

The RAISE Act would reduce legal immigration by 50 percent over the next decade. The government annually grants lawful permanent residence to approximately 1 million immigrants from countries including Mexico, China and India. About two-thirds of visas in the United States are allocated because applicants have family members already in the country. But this bill would eliminate all family sponsorship beyond spouses and minor children of U.S. citizens and legal permanent residents.

Besides dramatically reducing family-based immigration, the RAISE Act would replace the current selection scheme with a points system based on "merit." Applicants would earn points that favor high-paying job offers, advanced degrees and huge financial investments of more than $1 million in the United States. People who are closest to age 25 and have high English proficiency scores would also receive preference. The act would do nothing to help ensure the the lawful admission of workers in agriculture and the service industries, which today employs many undocumented workers.

The changes proposed under the RAISE Act would only exacerbate the current problem of undocumented immigration. The United States has roughly 11 million undocumented immigrants largely because of the unrealistic restrictions on legal immigration under current laws. California is home to nearly a quarter of the nation's undocumented immigrants.  

If Congress enacts a system like the RAISE Act, it will not address the high demand in the United States for low- and medium-skilled workers. Who will fill the jobs in agriculture, construction and service industries that undocumented immigrants overwhelmingly perform today?

By eliminating DACA Trump is giving Congress a historic opportunity for immigration reform. This is a chance for lawmakers to enact more profound immigration reform that is fair, enforceable, and lives up to the nation's ideals. Such reform is just what the nation needs in these troubled times.

By Kevin R. Johnson

[Cross-posted from the Sacramento Bee]

In 2015, the San Francisco Sheriff's Department released an undocumented immigrant as required by local ordinance. He later allegedly murdered Kate Steinle. This undeniable tragedy stirred a national controversy over "sanctuary laws."

But many state and local governments had similar laws and policies that require the release of noncitizens from custody in the absence of a federal warrant. The Los Angeles Police Department, among others, limits police inquiry into the immigration status of crime victims, witnesses and suspects, a policy that dates to the late police Chief Daryl Gates' tenure in 1979.

The basis for such policies stems from an important principle: effective law enforcement requires trust of all residents, including immigrants. To build that trust, local government cannot appear to be part of the federal immigration enforcement machine. For that fundamental reason, there traditionally has been a separation between local police and federal law enforcement.

Consistent with that long tradition, a proverbial flood of jurisdictions across the country responded to record numbers of removals by the Obama administration. The goal was to enact laws and policies to protect state and local government autonomy. In 2014, the California Legislature passed the TRUST Act, which said state and local law enforcement did not have to cooperate with the U.S. government for arrests of noncitizens who committed minor crimes.

Now the Legislature is considering the California Values Act, Senate Bill 54 by Senate President Pro Tem Kevin de León, D-Los Angeles. The bill is a response to President Donald Trump's repeated threats of mass deportations, made all the more real with the rescission last week of the Deferred Action for Childhood Arrivals (DACA) program.

SB 54 would provide safeguards to ensure that immigrants can visit government offices, work with police, take their children to school and go to the doctor without fear of deportation. In line with policies already in place, it also would allow local and state jurisdictions to refuse to comply with federal immigration enforcement if an undocumented immigrant has not committed a major crime.

The act responds to a palpable fear among immigrants, who are anxious about any interactions with state and local government officials. Specifically, they believe that information provided to those local officials could end up in the hands of federal immigration enforcement authorities. And who could blame them?

In recent months, U.S. Immigration and Customs Enforcement officials have gone to state and local courthouses to make targeted arrests of undocumented immigrants facing criminal charges, even traffic infractions. Immigration officials have gone so far as to arrest an undocumented immigrant after he dropped his child off at school.

The Trump administration no doubt will attack the California Values Act, as it has attacked "sanctuary cities" generally. In a January executive order, the administration threatened to eliminate all federal funding to so-called sanctuary cities. A federal court in San Francisco ruled that the defunding proposal was unconstitutional.

The U.S. Supreme Court has also weighed in by striking down state laws, such as Arizona's "Show Your Papers" law, SB 1070. That law mandated that state and local law enforcement officers participate in immigration enforcement. Although state and local officials cannot regulate immigration as Arizona tried to do, they can determine how to provide essential services to immigrants in their communities. That is precisely what the Values Act seeks to do.

California's Values Act is not an attempt to regulate immigration. Rather, it is an attempt to serve and protect all California residents, consistent with federal law. De León's bill is a legitimate effort by the state to determine how it interacts with, and protects, its citizens.

By Rose Cuison Villazor

[Cross-posted from the New York Times]

DAVIS, CALIF. - On Tuesday Attorney General Jeff Sessions announced the White House's plan to rescind protections for young immigrants who arrived in the United States illegally as children, but with a six-month grace period to let Congress respond. The program, Deferred Action for Childhood Arrivals, grants those who qualify for the program a reprieve from deportation, which they must renew every two years.

The White House claims that DACA, which President Barack Obama announced in 2012 and which has broad bipartisan support, is illegal, but deferred action is a widely accepted legal principle. Over the last five years, DACA has become a core part of America's immigration landscape: DACA has been granted to more than 800,000 immigrants, allowing them to attend school, work and contribute to their communities. Its repeal would upend the lives not only of these "Dreamers," as participants are called, but also of their families, co-workers and employers.

The announcement leaves the Dreamers with countless questions. While authorities have said they won't prioritize DACA participants after the program ends, how easily could that change? Will Congress come through with a replacement? The announcement says that information provided in DACA applications would not be proactively shared, with some exceptions - but does that leave open the possibility that information may be shared upon request from enforcement agencies?

At least two things are clear, however. First, the government must continue to treat current DACA recipients as people with deferred action, who should not be removed unless they violate the terms of DACA. Officials say that some recipients will be allowed to keep their status and even renew; the government should make this clear and apply it to all current DACA participants. The Department of Homeland Security has its own standard operating procedures that specify the process of how one's particular DACA approval may be rescinded. The government must continue to comply with its own guidelines and not revoke a person's deferral arbitrarily.

Second, and most important, is what the government does with the information Dreamers gave it as part of their application - information that amounts to an admission of their having entered the country illegally, albeit without their knowledge, since they were children at the time. United States Citizenship and Immigration Services, which administers DACA, should delete all their information.Every weekday, get thought-provoking commentary from Op-Ed columnists, the Times editorial board and contributing writers from around the world.

Applicants gave that information with the assurance that it would not be shared with Immigration and Customs Enforcement or Customs and Border Enforcement, the agencies that otherwise would be charged with deporting them. As the Citizenship and Immigration Services' own guidance states, "information provided in this request is protected from disclosure to ICE or C.B.P.," unless the applicant commits a crime or poses a national security threat.

Dreamers divulged information to the government, expecting that their information would not be shared. The information includes not only potentially incriminating information like date of initial entry and length of stay in the United States, but also details like their names, addresses, school information and Social Security numbers - precisely what the government needs to locate and detain them quickly.

As Zachary Price of the University of California Hastings College of the Law has argued, using such information would constitute entrapment. Courts have thrown out convictions of defendants who were prosecuted based on actions, statements or information they provided when they were assured that their conduct would not lead to adverse action. Dreamers facing deportation could apply the same logic here. Absent that information, it would be much harder, though not impossible, to deport them. Allowing the government to use their information would be, to quote the Supreme Court in a leading entrapment case, "shocking to the universal sense of justice."

This is information that Dreamers would not have given the government without such nondisclosure assurances. They thought they could trust the government. In fact, in some cases lawyers advised clients who were considering applying not to, precisely, they said, because the government couldn't be trusted.

Allowing the government to use the information obtained through DACA to find these individuals and remove them would not only be heartless, but would set a dangerous precedent. Even if Congress, sometime in the future, were to enact a legislative equivalent of DACA, what are the chances that undocumented immigrants would once again put their faith in a government database?

In an interview President Trump gave days after his inauguration, he said that he was looking at the DACA program with a "big heart." Seven months later, many are heartbroken about the loss of a program that has brought thousands of Americans a sense of belonging despite their lack of "papers." But as in so many cases under this still-young administration, the expansive cruelty of the executive branch may yet be tempered by the powers and wisdom of America's legal system.

[Cross-posted from Immigration Prof.]

The Supreme Court's 2016 Term has come to an end.  Today, the last day of the Term, the Court in the biggest news agreed to review the travel ban decisions in the 2017 Term. In a per curiam order, the Court stayed the injunction in part.  Justice Thomas, joined by Justices Alito and Gorsuch, concurred in part and dissented in part.   He would have stayed the injunctions in full.   

In Hernandez v. Mesa, which involved a cross border shooting by U.S. immigration enforcement officer of a young Mexican national, the Court in a per curiam pinionr vacated and remanded the case to the court of appeals to consider whether the family could sue for violation of the Fourth Amendment under the Supreme Court's 1971 Bivens decision.  The order, which is analyzed here, observed that the case involved "a heartbreaking loss of life."  Justice Gorsuch did not participate in the case.

The Court ordered reargument in two immigration cases.  

In Jennings v. Rodriguez  (reviewing the legality of detention of immigrants without a bond hearing) and Sessions v. Dimaya (reviewing a Ninth Circuit decision, written by Judge Stephen Reinhardt, striking down a criminal removal provision as unconstitutionally vague), the Court will hear rearguments next fall.   The Court likely was split 4-4 in these cases  Justice Gorsuch will break the tie.

The Court earlier this Term decided four decisions touching on immigration:

1.  Sessions v. Morales-Santana (invalidating gender distinctions favoring women over men based on antiquated on stereotypes in derivative citizenship laws).

2.  Esquivel-Quintana v. Sessions  (interpreting criminal removal provision).

3.  Maslenjak v.. United States  (denaturalization).

4.  Lee v. United States  (ineffective assistance of counsel claim based on erroneous advice on immigration consequences of guilty plea).

The Court agreed to review is seven immigration-related cases  in total in  the 2016 Term, which is a relatively large number. Two  (Maslenjak and Santana-Morales) touched on citizenship and denaturalization.  Five (Jennings, Dimaya, Esquivel-Quintana, Lee v. U.S.. Hernandez v. Mesa) involved immigration enforcement, which should not be surprising in light of the Obama administration's immigration enforcement push.  Increased immigration enforcement under President Trump will likely lead to a steady stream of immigration cases to the Supreme Court.